England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20th December 2010

1. MR JUSTICE WILKIE: Jason Greer is wanted in the Republic of Ireland to be tried for a number of offences concerning, amongst other things, possession with intent to supply controlled drugs - a substantial quantity of cannabis.
2. He fled the Irish jurisdiction ahead of a trial which had been scheduled for 18 February 2003. The Irish judicial authorities issued an European Arrest Warrant, which was duly executed on 11 May of this year. Extradition pursuant to that warrant was considered at the City of Westminster Magistrates' Court by District Judge Riddle on 23 September 2010. The argument was one pursuant to section 21 of the Extradition Act, namely that extradition would not be compatible with Mr Greer's Convention rights. The District Judge decided that issue adversely to Mr Greer. Accordingly, he ordered his extradition.
3. Mr Greer sought to appeal against that to the Administrative Court, and on 28 September 2010 filed a notice of appeal with the court, but because of an administrative error within his solicitor's office, the sealed copy of that notice of appeal was not served on the respondent judicial authority within the 7 day time limit for so doing.
4. As far as the court was concerned, however, there was a valid appeal and arrangements started to be made to have it heard, including a listing for today's date, 20 December.
5. Arising out of email exchanges between the court and the solicitors acting for Mr Greer it became apparent, and indeed was accepted by those solicitors, that they had failed to comply with the requirements of section 26 by both filing and serving the notice of appeal, it being a requirement of the rules of court that a notice of appeal be both filed and served within the 7 day period.
6. That gave rise to further email exchanges in which the approach of the court and the prosecuting authorities as to suggest that the appropriate way forward was for the appeal to be dismissed by consent and those acting for Mr Greer contending that there was no need for, and no sense in the court dismissing the appeal, because there was no valid appeal by reason of the failure to comply with section 26 and the rules of the court.
7. That in turn gave rise to an argument raised on behalf of Mr Greer that in those circumstances section 35 of the Extradition Act applied. That section applies where there is no appeal. Section 35(1) provides that section 35 applies if (a) the appropriate judge orders a person's extradition to a category one territory under this part and (b) no notice of an appeal under section 26 is given before the end of the period permitted under that section.
8. Section 26, insofar as it is relevant, provides by sub-section 4 that:

"Notice of an appeal under this section must be given in accordance with the rules of court before the end of the permitted period, which is 7 days starting on the day on which the order is made."

9. The relevant rules of court are to be found in the practice direction of part 52 of the Civil Procedure Rules, and, in particular, the paragraph dealing with appeals pursuant to section 26 of the 2003 Act. Sub paragraph 3 provides as follows:

"Where an appeal is brought under section 26 or 28 of the Act -

(a)the appellant's notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made."

10. Section 35 provides that if there is no appeal then the person must be extradited to the category one territory before the end of the required period (sub-section 3). Sub-section 4 defines the required period as 10 days starting with the day on which the judge makes the order, or (b) if the judge in the authority which issued the Part One Warrant agrees a later date, 10 days starting with the later date. It is common ground that the prosecuting authorities have never sought to agree with the appropriate judge a later date pursuant to section 35(4).
11. The argument which has been advanced by Mr Hawkes on behalf of Mr Greer is that a combination of these statutory provisions leads inexorably to the conclusion that time has long since elapsed under section 35 for Mr Greer to be extradited pursuant to the order made on 23 September and there is ample authority that, in the circumstances in which that has arisen, which involves, on the face of it, an absence of due diligence on the part of the prosecuting authorities, the warrant should simply be cancelled and that is the order which he applies for me to make. He says that the logic of the position is clear and unambiguous where there has been no successful launching of an appeal under section 26 because, although a notice was filed, a sealed notice was not served, and that means that section 35 bites. It is an extradition where there is no appeal, and accordingly, the 10 days began with the date of the judge's order.
12. He seeks support for this proposition from a recent decision of the Divisional Court, the Regional Court in Konin (Poland) v Pawel Walerianczyk [2010] EWHC 2149. That was a case in which the CPS was at fault. It had served a draft notice of appeal in time but had failed to give notice of the appeal to the respondent to the appeal. The consequences of that for the validity of the appeal were for decision by the Divisional Court. The court, having reviewed the various authorities and having noted that the section 26 regime is an extremely strict one, concluded that, in the absence of service within time, notwithstanding that the notice of appeal was filed in time, the appeal was not a valid appeal. The outcome, as recorded in the judgments of Stanley Burnton LJ and Nicol J, of there being no valid appeal was that each of them said that the appeal was dismissed. It seems to me that it necessarily follows, from their making such an order, that the Divisional Court considered itself to be seised of the appeal for the purposes of hearing argument on the question of whether there had been strict compliance with the requirements of the rules, and if there had not, whether there was any leeway for those who had not strictly complied with the rules. Having decided that the rules had not been complied with and there was no discretion of the matter they, being seised of the appeal, concluded that there was no valid appeal and consequently it had to be dismissed.
13. Mr Hawkes argues that that sequence of conclusions contains an illogicality. That may, in strictly theoretical terms, be right, but, in my judgment, it reflects the reality, which is that issues such as the validity of the appeal may be required to be argued out, considered and decided by the court, so that the court is properly seised of the appeal, albeit in inchoate form, and a decision that there was no valid appeal necessarily results in a decision of the court dismissing the appeal. Mr Hawkes said that that is different from the present situation, because it was at all times acknowledged that the rules had not been complied with and there was no room for the exercise of any discretion, and therefore the appeal was never valid.
14. In my judgment in circumstances where the court has received a notice of appeal, the court is seised of it in the sense that it is obliged to deal with it in some way or another, hence the emails inviting those who instruct Mr Hawkes to consent to the dismissing of the appeal. The logic of that position is that there is an appeal until such time as a court has dismissed it, provided that a notice of appeal has been filed.
15. In those circumstances in my judgment the appropriate section of the 2003 Act which applies to those circumstances is section 36, which deals with an extradition following an appeal. That applies if there is an appeal under section 26 and the effect of the decision of the appellate court on the appeal is that the person is to be extradited. In my judgment the dismissing by this court of an appeal on the grounds of its invalidity by reason of the failure to comply with the strict time limits does operate as there having been an appeal to the court, and a decision on the appeal that the person is to be extradited. Section 36 requires, then, that the person must be extradited before the end of a required period, 10 days, which starts with the date on which the decision of the relevant court on the appeal becomes final or the proceedings on the appeal are discontinued.
16. In my judgment section 35 does not apply in the present circumstances. I am supported in that conclusion by two things: first, it does seem that the courts, in dealing with out of time appeals, have invariably concluded the matter by dismissing the appeal, notwithstanding the apparent theoretical illogicality of that position.
17. Second, the contrary position would give rise to an unsatisfactory and impracticable set of circumstances. The statutory scheme requires the appeal to be lodged within 7 days and, in the absence of any agreement, for extradition to take place within 10 days, each of them after the outcome of the proceedings before the magistrates. If Mr Hawkes were right, and in every case in which a notice of appeal had been filed within 7 days but not served on the prosecuting authority within 7 days, the prosecuting authority would have to act with great haste in order to extradite someone where it suspected that a valid appeal had not been launched in time. That would inevitably give rise in many case to say arguments as to whether they were entitled to extradite during that three day period, because it might be argued that in some way or another the notice of appeal had been filed and served in time, although the requirements of time are very strict under the Extradition Act, it cannot in my judgment have been intended that such potentially chaotic consequences should flow as would flow from the position if Mr Hawkes' argument were correct.
18. Accordingly, despite his attractive argument and attractive way of putting it, in my judgment his application that the extradition warrant should be cancelled does not succeed. There is no argument but that this appeal should be dismissed as not having been lodged in time, and accordingly that is the order of the court in this case.
19. MR HAWKES: My Lord, I am legally aided, might I ask for assessment?
20. MR JUSTICE WILKIE: Yes, by all means.